Prosecutors in Illinois are quite fond of a line of closing argument that goes something like this:

“…and in regards to a jury instruction on the definition of ‘beyond a reasonable doubt.’ You ain’t gonna get one, so don’t look to hard for it. That is the legal standard you must apply in this case. That is not an impossible task. Hundreds of juries are doing it as we speak and thousands have done it this month. Working together you can apply this standard to the facts you heard in this case.”

I challenge an attorney to find a closing argument that is more common than what I quoted above.

…But Is This Error?

This, however, begs the question.

Is this closing argument obtainable? Is it proper?

Let’s break it down by way of example.

The Case

In a recent Illinois decision, the defense attorney argued to the jury:

“The State has a burden to prove that it was indeed Mr. Thompson who stole those laptops. Not that it could have been him, it might have been him, probably could have been him. No, that is not enough. They have to prove it beyond a reasonable doubt.” ¶ 38.

Additionally, this defense attorney also commented on the “poor investigation” conducted by the police. I think it is fair to say that this kind of argument may be the most popular on the defense side. In this case, it went like this:

“[the jury] wouldn't have to assume anything because the law requires that the State prove their case beyond a reasonable doubt, not for you to guess and think that what the possibilities could have been …. Basically you are left here to guess. That is not proof beyond a reasonable doubt.” ¶ 24.

The State's Response

In rebuttal, the State argued:

“And with respect to reasonable doubt, that's a burden that's met in courtrooms across the country every day. It's not proof beyond all doubt, it's not prove any doubt [sic], it's proof beyond a reasonable doubt. And you are the ones that determine what a reasonable doubt is.” ¶ 25.

No, a prosecutor cannot define reasonable doubt for the jury. But the state can tell the jury that they are the ones to determine what reasonable doubt is.

Reviewing Court's Response

The reviewing court in this case also said that it was not reversible error for the State to have told the jury that other juries across the country define, apply, and meet the burden of proof beyond a reasonable doubt in criminal cases every day.

Specifically, the reviewing court said that:

“Therefore, we find no error. But, were we considering this issue under the plain error standard, no prejudice resulted where defense counsel's argument invited the prosecutor's remarks.” ¶ 38.

I think we can argue about whether or not the defense “invited” the prosecutor’s remarks, but it is correct that even if the statement about other juries was error, it likely did not affect the outcome of the case.

So, Is The Line Objectionable or Not?

This court did not come right out and say that it was objectionable. The court merely said that under the plain error standard no reversible error occurred.

This was their way of saying:

“The statement about what other juries in other courtrooms are doing is probably a mistake, but we ain’t going to reverse this case over it.”

Indeed, many of the cases cited by the court applied the plain error standard to sustain the convictions in their cases and in doing so implied the statement is an error in the first place.

My Reasonable Doubt Argument

Logically, the reason why such a statement would be improper is because it is prejudicial. What happens in other cases by other juries is irrelevant to the case at hand. It doesn’t matter what other juries do.

Yes, prosecutors may argue the line is proper because it is merely saying something true about “reasonable doubt” and the line does not expressly define the term. In fact, some prosecutors include verbiage in the same argument that …

“…the court will not define this term for you.”

Yeah, ok. It is also true that police misconduct happens in other cases. Yet, I don’t think the State would be very happy with defense attorneys arguing that police misconduct must have, therefore, occurred in this case.

We shouldn’t be telling jurors that other juries are applying this standard with no problem because …

A) It doesn’t matter what other juries do and
B) The line does kind of suggest that the standard of proof beyond a reasonable doubt is something less than it really is.

File a Motion in Limine

I think, the defense bar would be well served to amend their general motion in limine to include a line that bars the State from pursuing this line of argument.

The case I discuss here, provides us with an outline to follow to draft a sample motion in limine to prevent the prosecution from going into this line of argument. I pulled out the cases cited in Thompson that you can cite in your motion.

The cases that discuss this issue are:

People v. Martinez, 76 Ill. App. 3d 280, 285 (1979)

People v. Frazier, 107 Ill. App. 3d 1096, 1102 (1982)

People v. Trass, 136 Ill. App. 3d 455, 467 (1985)

People v. Carroll, 278 Ill. App. 3d 464, 468 (1996)

People v. Mena, 345 Ill. App. 3d 418, 426-27 (2003)

People v. Johnson, 208 Ill. 2d 53, 115 (2003)

Don’t get caught up on the fact that some of these cases come out in favor of the State.

Remember, if the conviction was sustained under a plain error standard, the presumption is that an error did occur in the first place.

Good luck.

If anyone actually takes the time time to draft this motion, please share it with me.